Crabtree v. Hope's Windows Inc et al
Filing
40
ORDER denying 35 Motion to Dismiss; granting in part and denying in part 20 Motion to Dismiss; denying 29 Motion for Default Judgment; denying 29 Motion to Amend/Correct; denying 31 Motion for Sanctions. Signed by Judge Victor A. Bolden on 5/30/2018. (Riegel, J.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
ROBERT E. CRABTREE, JR.,
Plaintiff,
v.
No. 3:17-cv-01709 (VAB)
HOPE’S WINDOWS, INC., BRIGHT
WINDOW SPECIALISTS, INC., and
RICHARD KUSYK,
Defendants.
RULING AND ORDER ON PENDING MOTIONS
Robert E. Crabtree, Jr. (“Plaintiff”), has sued Hope’s Windows, Inc. (“Hope’s
Windows”) and Bright Window Specialists, Inc. (“Bright”) and Richard Kusyk (“Defendant”)
(collectively the “Bright Defendants”) for breach of Article 2 of Connecticut’s Uniform
Commercial Code, Conn. Gen. Stat. § 42a-2-101, et seq., breach of contract, breach of implied
warranty, revocation of acceptance, conversion, and violation of the Connecticut Unfair Trade
Practices Act (“CUPTA”), Conn. Gen. Stat. § 42a-110a et seq.
The Bright Defendants move to dismiss the case and also move for sanctions under Rule
11 of the Federal Rules of Civil Procedure. Mr. Crabtree moves to amend the First Amended
Complaint under Rule 15 of the Federal Rules of Civil Procedure and for a default judgment
against Hope’s Windows under Rule 55.
Hope’s Windows, after oral argument had already been heard on the Bright Defendants’
motion to dismiss, now moves to dismiss the lawsuit against it.
For the reasons that follow, the Bright Defendant’s motion to dismiss is GRANTED in
part and DENIED in part. Mr. Crabtree’s claims under Conn. Gen. Stat § 42a-2-101 et seq. and
1
for breach of contract, breach of implied warranty, and revocation and acceptance are all
DISMISSED. The Court, however, lacks subject-matter jurisdiction over the remainder of Mr.
Crabtree’s claims against the Bright Defendants and REMANDS them to Connecticut Superior
Court. The Bright Defendant’s motion for sanctions is DENIED.
Mr. Crabtree’s motion to amend the First Amended Complaint and for default judgment
are both DENIED.
Hope’s Windows’ motion to dismiss is DENIED.
I.
FACTUAL ALLEGATIONS AND PROCEDURAL BACKGROUND
Mr. Crabtree owns the property located at 918 North Street in Greenwich, Connecticut
(“the Property”). First Am. Compl. ¶ 1, ECF No. 19. Hope’s Windows, Inc. (“Hope’s Windows
”) manufactures custom windows, doors, and other architectural products. Id. ¶ 4.1 Their
windows allegedly come with a lifetime warranty from manufacturer defects. Id. ¶ 5.2 Bright
Windows Specialists, Inc. (“Bright”) is allegedly Hope’s Windows’s sole regional sales
representative for Greenwich, Connecticut, and Mr. Kusyk is Bright’s owner. Id. ¶ 3.3 This
dispute arose when windows that Bright installed in Mr. Crabtree’s home allegedly began to
crack spontaneously after installation.
A.
Factual Allegations
Mr. Crabtree bought windows and doors from Hope’s Windows through the Bright
Defendants in December 2005. First Am. Compl. ¶ 6. Mr. Crabtree paid Bright, by and through
1
The First Amended Complaint includes two paragraphs numbered four. Here, the Court
references the first paragraph numbered four.
The First Amended Complaint includes two paragraphs numbered five. Here, the Court
references the first paragraph numbered four.
2
The First Amended Complaint includes two paragraphs numbered three. Here, the Court
references both paragraphs.
3
2
his general contractor, approximately $1,000,000 to install the windows and doors. Id. ¶ 7. In
2007, ninety-five percent of the windows and doors had allegedly been installed, and, by 2008,
Mr. Crabtree moved into the home. Id. ¶ 9. In the following months, Mr. Crabtree allegedly
discovered that windows and door frames were defective with missing frame pieces, improperly
set window sills and doors that rattled, and hardware missing or improperly installed. Id. At the
time, the Amended Complaint alleges that Mr. Crabtree had no knowledge of defects in the glass
itself. Id.
In a complaint filed in Connecticut Superior Court, Judicial District of Stamford/Norwalk
at Stamford on February 3, 2010, Mr. Crabtree sued Defendants regarding the windows and
doors they installed at the Property. See generally Feb. 3, 2010, Compl. ¶ 10, Bright’s Br., Ex. B,
ECF No. 20 at 18. That complaint included four causes of action, alleging (1) products liability;
(2) breach of implied warranty; (3) revocation of acceptance; and (4) a violation of the CUTPA.
See generally Feb. 3, 2010, Compl. With respect to the first cause of action, the complaint
alleges that Bright installed windows and doors from Hope’s Windows that were “negligently
and defectively manufactured.” Id. ¶ 10; accord id. ¶ 12 (“Defendant Hope’s breached its duty
by negligently and defectively manufacturing the Goods which are inferior and unusable for their
intended purpose.”).
Mr. Crabtree, Hope’s Windows, and the Bright Defendants settled that case. See
generally Settlement Agreement (“Agreement”), Bright Br., Ex. C, ECF No. 20 at 28. The
agreement provides: “In full and final satisfaction of any and all claims that CRABTREE has or
may have against HOPE’S and BRIGHT, on or about May 17, 2010, . . . BRIGHT shall perform
the remaining ‘punch list’ work, . . . and any additional replacement of materials or repairs that
HOPE’S and CRABTREE agree may be required to be performed so that the installation of the
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windows and doors and deemed by HOPE and CRABTREE to be complete in all respects . . . .”
Id. § 1(a). The Agreement also provided for a general release, under which Mr. Crabtree
“release[d] and forever discharge[d] BRIGHT . . . from all actions, claims and causes of action,
including, but not limited to, all claims relating to any work performed by BRIGHT . . . which
against BRIGHT . . . , CRABTREE . . . ever had, now have or hereafter can, shall or may, have
for, upon or by reason of any matter, cause or thing whatsoever from the beginning of the world
to the day of this RELEASE.” May 17, 2010, General Release, Bright Br., Ex. D, ECF No. 20 at
35. Finally, the Agreement also included a merger clause that provides that all agreements
between the parties were expressed through the written agreement, and may only be modified by
written agreement signed by the parties. Settlement Agreement §§ 6–7.
In February 2017, the first of five windows at the Property allegedly “spontaneously
fractured like an automobile windshield.” First Am. Compl. ¶ 11. The First Amended Complaint
asserts that, later that summer, four additional windows “spontaneously burst in the same
manner.” Id. These windows were allegedly purchased and installed under the $1,000,000
contract between Mr. Crabtree and Bright that were the subject of the 2010 litigation. Compare
id. ¶ 11 (“The defective windows were purchases and installed under the $1,000,000 Contract.”),
with Feb. 3, 2010, Compl. ¶ 6 (“By the time the doors and windows were installed, the contract
price had increased to almost $1,000,000.”). The First Amended Complaint asserts that the cause
of the fractures was a manufacturing defect. Compare Compl. ¶ 21 (“Bright installed Hope’s
windows and doors in the Premises[,] however[,] the windows and doors [] were negligently and
defectively manufactured and spontaneously fracture.”), with Feb. 3, 2010, Compl. ¶ 12
(“Hope’s breached its duty by defectively manufacturing the Goods which are inferior and
unusable for their intended purpose.”).
4
Mr. Crabtree allegedly contacted Mr. Kusyk and Hope’s Windows to request that
Defendants replace the defective windows and doors, which Mr. Kusyk’s allegedly had stated
would “last a lifetime.” Id. ¶ 13. The Complaint asserts that, knowing that Mr. Crabtree had no
other option than to deal with Bright, Mr. Kusyk agreed to inspect the defective windows only
after Mr. Crabtree paid a “down payment fee” in the sum of $1,500, which Mr. Crabtree paid. Id.
After inspecting the windows, Mr. Kusyk allegedly said he could replace the windows for a
minimum of $3,500 per window. Id. Mr. Crabtree declined and, despite Mr. Crabtree’s demand,
Mr. Kusyk refused to return to Mr. Crabtree the $1,500 “deposit” for the windows. Id. ¶ 15.
B.
Procedural History
On September 26, 2017, Mr. Crabtree sued Defendants in Connecticut Superior Court at
the Judicial District of Stamford/Norwalk at Stamford. ECF No. 1-2. The Bright Defendants
subsequently removed the case to this Court under 28 U.S.C. § 1445. ECF No. 1. The Court has
jurisdiction under 28 U.S.C. § 1332.
On January 16, 2017, Mr. Crabtree amended the Complaint. ECF No. 19. The First
Amended Complaint remains operative. The First Amended Complaint asserts six causes of
action: (1) a violation arising out of Article 2 of Connecticut’s Uniform Commercial Code,
Conn. Gen. Stat. § 42a-2-101, et seq.; (2) breach of contract; (3) breach of implied warranty;4 (4)
revocation of acceptance; (5) conversion;5 and (6) violation of the CUTPA, Conn. Gen. Stat. §
42-110a et seq.
4
Mr. Crabtree asserts this claim solely against Hope’s Windows.
Both this claim and Mr. Crabtree’s claim under the CUTPA are asserted against the Bright
Defendants only.
5
5
The Bright Defendants now move to dismiss for failure to state a claim under Federal
Rule of Civil Procedure 12(b)(6). ECF No. 20. The Bright Defendants also move for sanctions
under Rule 11 of the Federal Rules of Civil Procedure. ECF No. 31.
On March 1, 2018, Mr. Crabtree moved for entry of default judgment against Hope’s
Windows and also now moves to amend the First Amended Complaint. ECF No. 29.
The Court heard oral argument on April 12, 2018, and Hope’s Windows did not appear.
ECF No. 33.
On April 13, 2018, Hope’s Windows moved to dismiss for failure to state a claim. ECF
No. 35.
II.
STANDARD OF REVIEW
A.
Federal Subject Matter Jurisdiction
District courts have “original jurisdiction of all civil actions where the matter in
controversy exceeds the sum or value of $75,000, exclusive of interests and costs, and is between
. . . citizens of different States.” 28 U.S.C. § 1332(a). Under 28 U.S.C. § 1441, “any civil action
brought in a State court of which the district courts of the United States have original
jurisdiction, may be removed by the defendant . . . to the district court of the United States for
the district . . . embracing the place where such action is pending.” 28 U.S.C. § 1441(a). CASE
CITATION.
However, “[i]f at any time before final judgment it appears that the district court lacks subject
matter jurisdiction, the case shall be remanded.” 28 U.S.C. § 1447(c). Cohen v. Postal Holdings,
LLC, 873 F.3d 394, 399 (2d Cir. 2017) (“[W]hen a district court correctly dismisses all federal
claims for lack of subject–matter jurisdiction . . . the district court is thereby precluded from
exercising supplemental jurisdiction over related state–law claims.”).
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B.
Motion to Dismiss
A complaint must contain a “short and plain statement of the claim showing that the
pleader is entitled to relief.” Fed. R. Civ. P. 8(a). Any claim that fails “to state a claim upon
which relief can be granted” will be dismissed. Fed. R. Civ. P. 12(b)(6). In reviewing a
complaint under Rule 12(b)(6), a court applies a “plausibility standard” guided by “two working
principles.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
First, “[t]hreadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” Id.; see also Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 555 (2007) (“While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not
need detailed factual allegations . . . a plaintiff’s obligation to provide the ‘grounds’ of his
‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic recitation of
the elements of a cause of action will not do.” (internal citations omitted)). Second, “only a
complaint that states a plausible claim for relief survives a motion to dismiss.” Iqbal, 556 U.S. at
679. Thus, the complaint must contain “factual amplification . . . to render a claim plausible.”
Arista Records LLC v. Doe 3, 604 F.3d 110, 120 (2d Cir. 2010) (quoting Turkmen v. Ashcroft,
589 F.3d 542, 546 (2d Cir. 2009)).
When reviewing a complaint under Federal Rule of Civil Procedure 12(b)(6), a court
must take the factual allegations in the complaint as true, Ashcroft, 556 U.S. at 678, and view the
inferences drawn therefrom in the light most favorable to the plaintiff. Cohen v. S.A.C. Trading
Corp., 711 F.3d 353, 359 (2d Cir. 2013); see also York v. Ass’n of the Bar of the City of New
York, 286 F.3d 122, 125 (2d Cir. 2002) (“On a motion to dismiss for failure to state a claim, we
construe the complaint in the light most favorable to the plaintiff, accepting the complaint’s
allegations as true.”).
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A court considering a motion to dismiss under Rule 12(b)(6) generally limit its review “to
the facts as asserted within the four corners of the complaint, the documents attached to the
complaint as exhibits, and any documents incorporated in the complaint by reference.” McCarthy
v. Dun & Bradstreet Corp., 482 F.3d 184, 191 (2d Cir. 2007). A court may also consider
“matters of which judicial notice may be taken” and “documents either in plaintiffs’ possession
or of which plaintiffs had knowledge and relied on in bringing suit.” Brass v. Am. Film Techs.,
Inc., 987 F.2d 142, 150 (2d Cir. 1993); Patrowicz v. Transamerica HomeFirst, Inc., 359 F. Supp.
2d 140, 144 (D. Conn. 2005).
C.
Motion to Amend
After a responsive pleading has been filed, “a party may amend its pleading only with the
opposing party’s written consent or the court’s leave.”6 Fed. R. Civ. P. 15(a)(2). Rule 15, which
calls for leave “when justice so requires,” has been applied liberally in order to “facilitate a
proper decision on the merits.” Foman v. Davis, 371 U.S. 178, 182 (1962) (quoting Conley v.
Gibson, 355 U.S. 41, 48 (1957)). Courts usually consider “undue delay, bad faith or dilatory
motive on the part of the movant, repeated failure to cure deficiencies by amendments previously
allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, [and]
futility of amendment” when deciding whether to grant leave to amend. Foman, 371 U.S. at 182.
Although Rule 15 is applied liberally, “Rule 16(b) may limit the ability of a party to
amend a pleading if the deadline specified in the scheduling order for amendment of the
pleadings has passed. Kassner v. 2nd Ave. Delicatessen Inc., 496 F.3d 229, 243 (2d Cir. 2007);
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On January 26, 2018, Mr. Crabtree filed a Second Amended Complaint. ECF No. 21. Mr.
Crabtree did not seek Defendants’ consent or seek leave of the Court before filing the January
26, 2018, Second Amended Complaint. This complaint is therefore not properly before the
Court.
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Fed. R. Civ. P. 16(b). Under the Rule 16(b) standard, a party may obtain a modification of the
scheduling order only “upon a showing of good cause.” Id.
D.
Motion for Sanctions under Federal Rule of Civil Procedure 11
Arguments that are presented to “harass, cause unnecessary delay, or needlessly increase
the cost of litigation,” or whose “claims, defenses, and other legal contentions are [un]warranted
by existing law or [are supported by []frivolous argument[s], for extending, modifying, or
reversing existing law or for establishing new law . . . the court may impose an appropriate
sanction on any attorney, law firm, or party that violated the rule or is responsible for the
violation.” Fed. R. Civ. P. 11(b)–(c).
Rule 11 provides, in pertinent part:
(2) Motion for Sanctions. A motion for sanctions must be made separately
from any other motion and must describe the specific conduct that
allegedly violates Rule 11(b). The motion must be served under Rule 5,
but it must not be filed or be presented to the court if the challenged
paper, claim, defense, contention, or denial is withdrawn or
appropriately corrected within 21 days after service or within another
time the court sets. If warranted, the court may award to the prevailing
party the reasonable expenses, including attorney’s fees, incurred for the
motion.
Fed. R. Civ. P. 11(c). “These procedural protections are intended to reduce the number of
motions for sanctions and to provide opportunities for parties to avoid sanctions altogether.”
Perpetual Sec., Inc. v. Tang, 290 F.3d 132, 141–42 (2d Cir. 2002) (citing Hadges v. Yonkers
Racing Corp., 48 F.3d 1320, 1327 (2d Cir.1995)).
E.
Motion for Default Judgment
Federal Rule of Civil Procedure 55 provides a two-step process to obtain a default
judgment. New York v. Green, 420 F.3d 99, 104 (2d Cir. 2005). The first step is to seek entry of
default. Id. “When a party against whom affirmative relief is sought has failed to plead or
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otherwise defend, a plaintiff may bring that fact to the court’s attention, and Rule 55(a)
empowers the clerk of the court to enter a default against a party that has not appeared or
defended.” Id. “Once default has been entered, the allegations of the complaint that establish the
defendant’s liability are accepted as true, except for those relating to the amount of damages.”
Coles v. Lieberman, Michaels & Kelly, LLC, No. 10-cv-484S, 2011 WL 3176467, at *1
(W.D.N.Y. July 27, 2011) (citation omitted); see also Transatlantic Marine Claims Agency, Inc.,
109 F.3d 105, 108 (“It is, of course, ancient learning that a default judgment deems all the wellpleaded allegations in the pleadings to be admitted.”) (citing Greyhound Exhibitgroup, Inc. v.
E.L.U.L. Realty Corp., 973 F.2d 155, 158 (2d Cir. 1992) (“While a party’s default is deemed to
constitute a concession of all well pleaded allegations of liability, it is not considered an
admission of damages.”)).
The second step is to seek a default judgment under Rule 55(b). “Rule 55(b)(1) allows the
clerk to enter a default judgment if the plaintiff’s claim is for a sum certain and the defendant has
failed to appear and is not an infant or incompetent person. See Fed. R. Civ. P. 55(b)(1). ‘In all
other cases,’ Rule 55(b)(2) governs, and it requires a party seeking a judgment by default to
apply to the court for entry of a default judgment.” New York v. Green, 420 F.3d 99, 104 (2d Cir.
2005). Under Rule 55(b)(2), a court must determine whether liability is appropriate, based on the
facts alleged in the Complaints. Coles, 2011 WL 3176467, at *1 (citation omitted); accord
United States v. Bunbury, 15-cv-3764 (JS), 2015 9050581, at *1 (E.D.N.Y. Dec. 15, 2015) (“[I]n
determining a motion for default judgment, the Court is responsible for ensuring that the
pleadings provide an appropriate basis for liability.” (citing United States v. Kemp, No. 15-cv02419 (PKC), 2015 WL 6620624, at *2 (E.D.N.Y. Oct. 30, 2015))). The court “may conduct
hearings . . . when, to enter or effectuate judgment, it needs to: [] conduct an accounting; []
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determine the amount of damages; [] establish the trust of any allegation by evidence; or []
investigate any other matter.” Fed. R. Civ. P. 55(b)(2).
III.
DISCUSSION
A.
Motion to Dismiss the First Amended Complaint
Mr. Crabtree brings two sets of claims: contract claims, relating to the Bright Defendant’s
installation of Hope’s Windows’ windows at the Property, and tort and statutory law claims
relating to Mr. Kusyk allegedly charging Mr. Crabtree a “down payment fee” to inspect the
allegedly defective windows, Am. Compl. ¶ 13, and Mr. Kusyk’s alleged refusal to return this
fee when Mr. Crabtree declined to pay to have the windows replaced. Id. 14–15. The Bright
Defendants argue that the Settlement Agreement and Release bar Mr. Crabtree’s claims
altogether. They also argue that Mr. Crabtree’s claims are time-barred.
1.
The Settlement Agreement and Release
Mr. Crabtree argues that these contract, tort, and CUTPA claims are distinct from the
claims covered by the Settlement Agreement and Release. The Court disagrees with respect to
the contract claims and agrees with respect to the tort claim of conversion and the related claim
under CUTPA.
Under Connecticut law, a court must construe the language of a written contract to give
effect to “the intent of the parties,” which a court determines “from the language used interpreted
in the light of the situation of the parties and the circumstances connected with the transaction.”
PSE Consulting, Inc. v. Frank Mercede & Sons, Inc., 267 Conn. 279, 290 (2004) (quoting Poole
v. City of Waterbury, 266 Conn. 68, 87–88 (2003)). In doing so, a court must accord the
language “common, natural, and ordinary meaning and usage where it can be sensibly applied to
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the subject matter of the contract.” Id. If the language is “clear and unambiguous, the contract is
to be given effect according to its terms.” Id.
“If the language of the contract is ambiguous, the Court must defer to a jury to determine
the intent of the parties.” Exec. Airlines v. Elec. Boat Corp., 271 F. Supp. 2d 392, 399 (D. Conn.
2003) (citing Topf v. Warnaco, Inc., 942 F. Supp. 762, 767 (D. Conn. 1996)). “[W]here there is
definitive contract language, the determination of what the parties intended by their contractual
communications is a question of law. . . .” Schwartz v. Family Dental Grp., P.C., 106 Conn.
App. 765, 771 (2008) (quoting Tallmadge Bros. v. Iroquois Gas Transmission Sys., 252 Conn.
479, 495 (2000); cf. Palozie v. Palozie, 283 Conn. 538, 548, n. 8 (2007) (“Parol evidence offered
solely to vary or contradict the written terms of an integrated contract is, therefore, legally
irrelevant.”). “A court will not torture words to import ambiguity where the ordinary meaning
leaves no room for ambiguity . . . . Similarly, any ambiguity in the contract must emanate from
the language used in the contract rather than from one party’s subjective perception of the
terms.” Schwartz, 106 Conn. App. at 775 (quoting Tallmadge Bros., Inc., 252 Conn. at 498)). “In
giving meaning to the terms of a contract, the court should construe the agreement as a whole,
and its relevant provisions are to be considered together.” Leichter v. Lebanon Bd. of Educ., 917
F. Supp. 2d 177, 185 (D. Conn. 2013) (citation omitted).
A contract that is “commercial in nature and [] made by sophisticated commercial parties
with the advice of counsel during an extensive drafting process,” may bear sufficient indicia to
raise a rebuttable presumption of definiteness. Tallmadge Bros., 252 Conn. at 496–97. Here, the
Settlement Agreement and Release arise from a commercial dispute and were drafted with the
advice of counsel during the course of an adversarial proceeding in Connecticut state court. The
Court’s determination of the party’s intent, therefore, is a question of law. See id. at 498
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(“[B]ecause the settlement agreements are commercial contracts containing definitive language,
the determination of the parties’ intent is a question of law.”).
a.
Section 42a of the Connecticut General Statutes (Count One)7
The terms of the Settlement Agreement and Release are unambiguous and unequivocal
and apply to the contract claims at issue here. The release provides that Mr. Crabtree “release[d]
and forever discharge[d] BRIGHT . . . from . . . all actions, claims and causes of action,
including, but not limited to, all claims relating to any work performed by BRIGHT . . . .” May
17, 2010, General Release. As a result, Mr. Crabtree relinquished “all suits, debts, dues, sums of
money, accounts, reckonings, bonds, bills, specialties, covenants, contracts, controversies,
agreements, promises, variances, trespasses, damages, judgments, executions, claims and
7
On their face, Counts Two through Four of the Amended Complaint are not viable as a matter
of law. In addition to a claim under Conn. Gen. Stat. § 42a-2-101 et seq. (Count One), Mr.
Crabtree asserts common law breach of contract (Count Two), breach of implied warranty
(Count Three), and revocation of acceptance (Count Four), all of which have been codified under
Title 42a of Connecticut’s General Statutes. See Conn. Gen. Stat. § 42a-2-101, et seq. Title 42a is
Connecticut’s adopted version of the Uniform Commercial Code (“UCC”) and governs
“contract[s] for sale.” Id. The UCC preempts common law claims to the extent that its provisions
provide a directly applicable body of statutory law. See Western Dermatology Consultants, P.C.
v. VitalWorks, Inc., 146 Conn. App. 169, 181–82 (2013) (noting that “Official Comment 2 to §
1-103 of the UCC explains that ‘while principles of common law and equity may supplement
provisions of the [UCC], they may not be used to supplant its provisions . . . .’”). Breach of
contract implied warranty and revocation of acceptance are part of this broader statutory scheme.
See, e.g., Conn. Gen. Stat. § 42a-2-607(3) (“Where a tender has been accepted [] the buyer must
within a reasonable time after he discovers or should have discovered any breach notify the seller
of breach or be barred from any remedy . . . .”); id. § 42a-2-315 (“Where the seller at the time of
contracting has reason to know any particular purpose for which the goods are required and that
the buyer is relying on the seller’s skill or judgment to select or furnish suitable goods, there is . .
. an implied warranty that the goods shall be fit for such purpose.”); id. § 42a-2-607(2)
(“Acceptance of goods by the buyer precludes rejection of the goods accepted and if made with
knowledge of a nonconformity cannot be revoked because of it unless the acceptance was on the
reasonable assumption that the nonconformity would be seasonably cured . . . .”).
Even if the Court were to construe Mr. Crabtree’s claims for breach of contract and
implied warranty and revocation of acceptance as arising under their statutory analog, they
would remain barred by the Settlement Agreement and Release.
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demands whatsoever, in law, admiralty or equity,” that Mr. Crabtree “ever had, now have or
hereafter can, shall or may, have for, upon or by reason of any matter, cause or thing whatsoever
from the beginning of the world to the day of the date of this RELEASE.” Id. These terms are
broad, but they are not uncertain.
The First Amended Complaint brings claims expressly related to the installation of
Hope’s Windows allegedly defective windows. See, e.g., Am. Compl. ¶ 23 (“Hope’s breached its
duty by negligently and defectively manufacturing the Goods which are inferior and unusable for
the intended purposes.”). At issue is a “manufacturing defect” that caused windows to
“spontaneously fracture[],” which, by its unambiguous and unequivocal terms, the release
embraces. Am. Compl. ¶ 11–12.
Mr. Crabtree relies on Muldoon v. Homestead Insulation Co., 231 Conn. 469 (1994), for
the proposition that a settlement agreement cannot bar “future” claims. But Mr. Crabtree
mischaracterizes the nature of his claims. Although “[t]he usual general release [] is not
ordinarily construed to include in its coverage claims based upon occurrences which have their
beginning after the instrument is executed,” under Connecticut law, release language covering
“future claims” and “unknown claims” “is ordinarily construed to cover [] inchoate claims that
are in being at the time of release but which have not yet manifested themselves.” Muldoon v.
Homestead Insulation Co., 231 Conn. 469, 481–82 (1994) (quoting H. Havighurst, “Principles of
Construction and the Parol Evidence Rule as Applied to Releases,” 60 Nw. U. L. Rev. 599, 611,
616 (1965)).
If, as alleged, it was not until February 2017 that the first of five windows at the Premises
spontaneously fractured “like an automobile windshield,” Am. Comp. ¶ 11, the alleged defects in
these windows were “inchoate . . . at the time of release,” Muldoon, 231 Conn. at 481–82. The
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Amended Complaint alleges as much. See Am. Compl. ¶ 12 (“[T]he only possible cause of the
fractures . . . is the manufacturing defect.”); id. ¶ 23 (“Hope’s breached its duty by negligently
and defectively manufacturing the Goods . . . .”); Sec. Am. Compl. ¶ 25 (“[T]he defect existed at
the time of the sale . . . .”). Mr. Crabtree argues that “every claim . . . is based upon facts which
occurred well after the date of the release.” Pl.’s Opp’n. Br. at 6, ECF No. 29-6. But Mr.
Crabtree has alleged a breach of contract claim related to a manufacturing defect, a defect that
had to have existed at the time the windows were manufactured. Thus, Mr. Crabtree seeks to
recover for damage that is the result of the alleged manufacturing defect—it is not the defect
itself. Cf. Catz v. Rubenstein, 201 Conn. 39, 44 (1986) (“A breach of duty by the defendant and
a causal connection between the defendant’s breach of duty and the resulting harm to the
plaintiff are essential elements of a cause of action in negligence.”).
Even if the windows only began to crack years after the parties entered into the
Settlement Agreement, because the cracking is allegedly the result of manufacturing error,
whether and when Mr. Crabtree knew of the manufacturing flaw is immaterial, because these
alleged defects are “future claims” contemplated by the Settlement Agreement and Release. See
Muldoon, 231 Conn. at 481–82 (“[L]anguage covering “future claims” and “unknown claims” in
releases is ordinarily construed to cover only inchoate claims that are in being at the time of
release but which have not yet manifested themselves.”).8
Mr. Crabtree also argues that because he purchased Hope’s Windows’ doors and
windows in reliance on Mr. Kusyk’s assurance that the goods would be free of defect and last a
8
The Connecticut Supreme Court’s more recent decision in Tallmadge is also no help to Mr. Crabtree’s legal
argument. In Tallmadge, the court held that a release provision that precluded liability for the defendant “by reason
of any matter, cause or thing whatsoever, incident to the construction of [a pipeline], and any acts in connection
therewith,” barred not the plaintiff from recovering for “incidental destruction not contemplated by the parties at the
time when the settlement agreements were drafted.” Tallmadge Bros., 252 Conn. at 499. Tallmadge succeeds
Muldoon and may very well have, sub silentio, overruled it, but, because Mr. Crabtree complains of an inchoate
defect, the Court need not, and does not, decide whether Tallmadge and Muldoon are in conflict.
15
lifetime, Mr. Crabtree is entitled to pursue his claims. Am. Comp. ¶ 22. This argument also falls
short. The Settlement Agreement and Release contains a merger clause that states: “All
agreements and understandings by and between the Parties are embodied and expressed herein,
and this Agreement states the entire agreement of the Parties hereto and supersedes all prior
agreement and contemporaneous negotiations and agreements, oral or written.” Settlement
Agreement § 6. Absent questions of unequal bargaining power, fraud, duress, or a contract in
violation of public policy, none of which are at issue here, the merger clause is “conclusive
evidence” of the parties intent to fully integrate the agreement, and this Court’s consideration of
extrinsic evidence—i.e., an alleged lifetime guarantee not included in the terms of the Settlement
Agreement and Release—is improper. Tallmadge Bros., 252 Conn. at 505; see also Weiss v.
Smulders, 313 Conn. 227, 248–49 (2014) (“Ordinarily, a merger clause provision indicates that
the subject agreement is completely integrated, and parol evidence is precluded from altering or
interpreting the agreement.” (quoting Tempo Shain Corp. v. Bertek, Inc., 120 F.3d 16, 21 (2d
Cir.1997))); Perricone v. Perricone, 292 Conn. 187, 194 (2009) (“[T]he unambiguous terms of a
written contract containing a merger clause may not be varied or contradicted by extrinsic
evidence.” (citation omitted)).
Because the Settlement Agreement and Release reaches all legal actions “including, but
not limited to, all claims relating to any work performed” by Bright, Mr. Crabtree’s claims under
§ 42a (Count One) and for breach of contract (Count Two), breach of implied warranty (Count
Three), and revocation and acceptance (Count Four), are foreclosed by the parties’ earlier
settlement. May 17, 2010, General Release. The Court therefore dismisses these claims.
16
b.
Common Law Conversion (Count Five) and the Connecticut
Unfair Trade Practices Act (Count Six)
Having dismissed all of Mr. Crabtree’s claims against the Bright Defendants with the
exception of his claim of conversion and under the CUTPA, only the amount of the alleged down
payment—i.e., $1,500—remains in dispute. As a result, the Court turns to whether this Court
may retain jurisdiction of Mr. Crabtree’s remaining two claims. It may not.
Although neither party has suggested that the Court lacks jurisdiction over the subject,
the Court has “an independent obligation to consider the presence or absence of subject matter
jurisdiction sua sponte.” Joseph v. Leavitt, 465 F.3d 87, 89 (2d Cir. 2006) (citation omitted).
“[T]he existence of federal subject matter jurisdiction over an action removed from state court to
federal court is normally to be determined as of the time of removal.” Hallingby v. Hallingby,
574 F.3d 51, 56 (2d Cir. 2009). Typically, the amount in controversy is established by the face of
the complaint and the dollar-amount actually claimed. Horton v. Liberty Mut. Ins. Co., 367 U.S.
348, 353 (1961); Scherer v. Equitable Life Assurance Soc’y of U.S., 347 F.3d 394, 397 (2d Cir.
2003). The Second Circuit “recognizes a rebuttable presumption that the face of the complaint is
a good faith representation of the actual amount in controversy.” Ocean Ships, Inc. v. Stiles, 315
F.3d 111, 116 (2d Cir. 2002).
“The party asserting federal jurisdiction must demonstrate federal subject matter
jurisdiction by competent proof.” Royal Ins. Co. v. Jones, 76 F. Supp. 2d 202, 204 (D. Conn.
1999) (citing McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189 (1936)). “Only
where it ‘appear[s] to a legal certainty that the claim is really less than the jurisdictional amount’
can the court dismiss an action for lack of subject matter jurisdiction.” Fallstrom v. L.K.
Comstock & Co., No. 3:99-cv-952 (AHN), 1999 WL 608835, at *1 (D. Conn. July 13, 1999)
(quoting Saint Paul Mercury Indem. Co. v. Red Cab. Co., 303 U.S. 283, 288–89 (1938)).
17
However, “[r]emoval statutes are to be strictly construed against removal and all doubts should
be resolved in favor of remand.” Id. (quoting Leslie v. Banctec Serv. Inc., 928 F. Supp. 341, 347
(S.D.N.Y. 1996) (citing Zahn v. Int’l Paper Co., 414 U.S. 291, 294 (1973)).
Here, there is no issue concerning diversity of citizenship, but in the First Amended
Complaint, Mr. Crabtree has put at issue the so-called “down payment fee,” which he claims
amounts to $1,500. He seeks to recover unspecified compensatory damages, punitive damages,
and statutory damages. Am. Compl. ¶ 41(iv);9 see also Label Sys. Corp. v. Aghamohammadi,
270 Conn. 291, 335 (2004) (“[P]punitive damages are limited to the costs of litigation less
taxable costs, but, within that limitation, the extent to which they are awarded is in the sole
discretion of the trier.” (citing Chykirda v. Yanush, 131 Conn. 565, 568 (1945)). Mr. Crabtree
also seeks punitive damages under CUTPA. Id. ¶ 41(iv). A court may consider prospective
punitive damages and attorney fees under CUTPA to determine whether this cases meets the
jurisdictional threshold under 28 U.S.C. § 1332, Ulbrich v. Groth, 310 Conn. 375, 449–50 (2013)
(permitting “multiple damages” under the punitive damages provision of CUTPA, which are
distinct the award of reasonable attorney fees and costs under the fees provision of CUTPA);
Perez v. Metro. Prop. & Cas. Ins. Co., No. 3:14-cv-01565 (CSH), 2014 U.S. Dist. LEXIS
178649, at *11 (D. Conn. Dec. 31, 2014) (“[B]ecause both punitive damages and attorneys’ fees
may be recoverable as a matter of right under CUTPA, they may be considered by the court
when determining whether a case involves . . . the jurisdictional minimum.” (citing A.F.A. Tours,
Inc. v. Whitchurch, 937 F.2d 82, 87 (2d Cir.1991) (“[I]f punitive damages are permitted under
The First Amended Complaint includes two paragraphs numbered forty-one. Here, the Court
references the second paragraph numbered forty-one.
9
18
the controlling law, the demand for such damages may be included in determining whether the
jurisdictional amount is satisfied.”))).
Mr. Crabtree asserts a claim of conversion and a violation of CUTPA solely against the
Bright Defendants. See, e.g., Am. Compl. ¶ 43 (“Defendant’s [sic] Bright and Kusyk have
wrongfully exercised dominion over the down payment . . . .”); id. ¶ 42 (“By defendants’ actions
. . . including the business practice that resulted in conversion . . . have violated the Connecticut
Unfair Trade Practices [Act].”); Pl.’s Opp’n Br. at 9 (alleging that the Bright Defendants’
attempt to “extort” $1,500 from Mr. Crabtree is a “stark violation” of CUTPA and that “the
balance” of the CUTPA claim derives from Mr. Kusyk inflating the cost per window as part of a
“novel defalcation scheme” that would result in Mr. Crabtree declining to replace them and
allow Mr. Kusyk to retain the $1,500). On the face of Amended Complaint, Mr. Crabtree has put
$1,500 in money damages related to the Bright Defendants at issue.
The Court lacks jurisdiction over this these claims. Even assuming Mr. Crabtree is
entitled to compensatory, punitive, and statutory damages, it is not at all obvious what
“competent proof,” if any, exists that at least $75,000 are in dispute. Jones, 76 F. Supp. 2d at
204.
It is immaterial for federal subject matter jurisdiction purposes for the Bright Defendants
that the other defendant, Hope’s Windows, may remain in this case. As the party asserting
federal jurisdiction, Mr. Crabtree may not aggregate claims severally alleged against the Bright
Defendants and a co-defendant to satisfy the jurisdictional threshold under 28 U.S.C. § 1332(b).
See E.R. Squibb & Sons, Inc. v. Accident & Cas. Ins. Co., 160 F.3d 925, 933 (2d Cir. 1998) (“It
is well established that for diversity actions the rule applicable to several plaintiffs having
separate claims, that each must represent an amount sufficient to give the court jurisdiction, is
19
equally applicable to several liabilities of different defendants to the same plaintiff.” (internal
quotation marks omitted) (quoting Walter v. Northeastern R.R. Co., 147 U.S. 370, 374 (1893);
see also Snyder v. Harris, 394 U.S. 332, 338 (1969) (noting that the 28 U.S.C. § 1332 does not
confer jurisdiction “where the required amount in controversy can be reached only by
aggregating separate and distinct claims”); Gilman v. BHC Sec., Inc., 104 F.3d 1418, 1422 (2d
Cir. 1997) (listing cases of the “non-aggregation” rule consistently across a variety of contexts);
Chase Manhattan Bank, N.A. v. Aldridge, 906 F. Supp. 870, 874 (S.D.N.Y. 1995) (“When
liability among defendants is several, a plaintiff cannot aggregate its claims against individual
defendants in order to satisfy the jurisdictional amount in controversy requirement of 28 U.S.C. §
1332. It must satisfy the jurisdictional amount with respect to each defendant.” (citing Dendinger
v. Maryland Casualty Co., 302 F.2d 850, 851 (5th Cir.1962))); 15 Moore’s Federal Practice §
102.108[2] (Matthew Bender 3d ed. 2018) (“A plaintiff must allege that the amount in
controversy is in excess of the jurisdictional amount against each defendant unless the
plaintiff’s claims against the defendants are common and undivided so that the defendant’s
liability is properly characterized as joint and not several.”).
Out of “respect for the limited jurisdiction of the federal courts,” the Court therefore
remands Mr. Crabtree’s remaining claims as to the Bright Defendants—for conversion and a
violation of CUTPA to Connecticut Superior Court. See In re Methyl Tertiary Butyl Ether
(“MTBE”) Prod. Liab. Litig., 488 F.3d 112, 124 (2d Cir. 2007) (internal quotation marks
omitted); see also 28 U.S.C. § 1447(c) (“If at any time before final judgment it appears that the
district court lacks subject matter jurisdiction, the case shall be remanded.”).
Having found that Mr. Crabtree’s claims related to the manufacturing and installation of
the windows have been extinguished and this Court lacks jurisdiction to hear the remaining
20
claims against the Bright Defendants, the Court need not, and does not, address the Bright
Defendants’ statute of limitations argument.
B.
Amending the First Amended Complaint
Mr. Crabtree seeks leave to file a Second Amended Complaint. ECF No. 29-6. The
Proposed Second Amended Complaint adds a products liability claim under Section 52-572m of
the Connecticut General Statutes.10 The Bright Defendants argue that amendment would be
futile. The Court agrees.
At the outset, Mr. Crabtree’s motion is untimely under the scheduling order, see ECF No.
17 (“Amended Pleadings due by 1/19/2018.”), and he has not moved to amend or shown good
cause to amend the scheduling order, which is a sufficient ground upon which to deny the
motion. See Kassner, 496 F.3d at 243 (“Rule 16(b) also may limit the ability of a party to amend
a pleading if the deadline specified in the scheduling order for amendment of the pleadings has
passed.”).
Even if Mr. Crabtree had shown good cause, amendment would be futile. The sole new
claim in the proposed Second Amended Complaint is one of products liability, which expressly
states that the alleged defect existed “at the time of the sale.” Sec. Am. Comp. ¶ 25. Mr. Crabtree
purchased the windows in December 2005. Am. Compl. ¶ 6. In Mr. Crabtree’s 2010 lawsuit for
which the 2010 Settlement Agreement and Release resolved, Mr. Crabtree also brought a
In his memorandum of support to his motion to amend the First Amended Complaint, Mr.
Crabtree states that the proposed Second Amended Complaint seeks to add a claim of products
liability. Pl.’s Br. at 1, ECF 29-6. The proposed Second Amended Complaint, however, makes
reference to Conn. Gen. State 572. Sec. Am. Compl. ¶¶ 20–26. There is no such statute. The
Court presumes this to be to be a scrivener’s error, and that Mr. Crabtree meant to assert a claim
under Conn. Gen. Stat § 52-572m et seq.
The proposed Second Amended Complaint also jettisons Mr. Crabtree’s claims under §
42a, breach of contract, and revocation of acceptance.
10
21
products liability claim, alleging that Hope’s “windows and doors were defective” and that they
had been “negligently and defectively manufactured.” Feb. 3, 2010, Compl. ¶¶ 8, 10. As
discussed above, see Part III.A.1.a, the Settlement Agreement and Release forever discharged
Bright from “all actions, claims, and causes of actions . . . from the beginning of the world to the
day of the date of this RELEASE.” The products liability claim in the proposed Second
Amended Complaint, the sole material difference between it and the First Amended Complaint,
is comfortably within the scope of the Settlement Agreement and Release.
Mr. Crabtree, however, also argues that, because his products liability claim only accrues
as of February 2017, when he discovered the manufacturing defect in the windows, i.e., when
they allegedly began to shatter spontaneously, the claim is not precluded by the Settlement
Agreement and Release. The Court disagrees.
Under Connecticut law, a product liability claim becomes stale unless brought within
threes year from the date when the injury “is first sustained or discovered or in the exercise of
reasonable care should have been discovered.” Gnazzo v. G.D. Searle & Co., 973 F.2d 136, 138
(2d Cir. 1992) (quoting Conn. Gen. Stat. § 52–577a). “In Connecticut, a cause of action accrues
when a plaintiff suffers actionable harm.” Id. (quoting Champagne v. Raybestos–Manhattan, 212
Conn. 509, 521 (1989)). “Actionable harm occurs when the plaintiff discovers or should
discover, through the exercise of reasonable care, that he or she has been injured and that the
defendant’s conduct caused such injury.” Champagne, 212 Conn. at 521 (citing Catz, 201 Conn.
at 44 (“A breach of duty by the defendant and a causal connection between the defendant’s
breach of duty and the resulting harm to the plaintiff are essential elements of a cause of action in
negligence.” (citation omitted))). Accrual, however, requires not “the fullest manifestation” of
the actionable harm, but merely “some form” of it. Gnazzo, 973 F.2d at 138 (quoting Lambert v.
22
Stovell, 205 Conn. 1, 7 (1987)); K.E. v. GlaxoSmithKline LLC, No. 3:14-cv-1294 (VAB), 2017
WL 440242, at *20 (D. Conn. Feb. 1, 2017) (citation omitted).
As discussed above, see supra Part III.A.1.a, the Settlement Agreement and Release
forever discharged Bright from “all actions, claims, and causes of actions . . . from the beginning
of the world to the day of the date of this RELEASE.” The products liability claim in the
proposed Second Amended Complaint, as alleged, takes as its factual predicate a manufacturing
defect that “existed at the time of the sale.” Sec. Am. Compl. ¶ 25. Mr. Crabtree’s February 2010
complaint alleges a products liability claim for windows and doors Mr. Crabtree “discovered”
were “defective” because they did not “operate properly” and “are generally defective in
numerous and substantial other ways.” Feb. 3, 2010, Comp. ¶ 8. And, as Mr. Crabtree’s counsel
rightly conceded at oral argument, the spontaneous cracking of the windows must be a
manifestation of a design flaw in the window frames. As discussed above and further addressed
below, however, the Settlement Agreement and Release extinguished precisely this type of
claim.
Indeed, under Muldoon, the Settlement Agreement and Release extends even to a claim,
such as Mr. Crabtree’s products liability claim, that was “inchoate . . . at the time of release” but
had yet to manifest itself. Muldoon, 231 Conn. at 481–82. Furthermore, following Muldoon, the
Connecticut Supreme Court in Tallmadge specifically rejected the argument Mr. Crabtree now
makes, that: “[A] release, even one referencing ‘future’ claims, does not release claims which
arise after the date of the release.” Pl.’s Opp’n Br. at 5; see Tallmadge, L.P., 252 Conn. at 499
(rejecting the trial court’s conclusion that, “[i]n spite of this seemingly unambiguous and
unequivocal language of the release,” the release applied only to direct construction damages,
and that the damage area provided for in the release was “incidental destruction not contemplated
23
by the parties at the time when the settlement agreements were drafted” and liability, therefore,
attached).
Given that the Release bars Mr. Crabtree’s claim of products liability, the Court denies
Mr. Crabtree’s motion to amend because, even if timely, it would be futile.
C.
Rule 11 Sanctions
The Bright Defendants move for sanctions under Fed. R. Civ. P. 11(b), arguing that the
claims have been discharged and are otherwise time barred. Mr. Crabtree, they argue,
commenced this action in bad faith and for improper purposes, and his factual contentions do not
possess any evidentiary support. Mot. for Sanctions, ECF No. 31.
“It is well established that a federal court may consider collateral issues after an action is
no longer pending.” Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 395 (1990). Because Rule
11 sanctions are not a judgment on the merits and, instead, “requires the determination of a
collateral issue, . . . [s]uch a determination may be made after the principal suit has been
terminated.” Id. at 396.
Although the Bright Defendants argue that Mr. Crabtree received notice, Rule 11(c)(2)
makes plain that the “motion” must be served under Rule 5, “but it must not be filed or be
presented to the court if the challenged paper, claim, defense, contention, or denial is withdrawn
or appropriately corrected within 21 days after service or within another time the court sets.”
Fed. R. Civ. P. 11(c)(2). The Bright Defendants sent Mr. Crabtree a “Rule 11 letter affording
Plaintiff a chance to withdraw his action,” which they reiterated by e-mail following Mr.
Crabtree’s filing of the First Amended Complaint. A letter and an e-mail, however, do not
constitute a motion. The Court therefore denies the Bright Defendant’s motion for sanctions as
procedurally flawed. See Costello v. Wells Fargo Bank Nat’l Ass’n, No. 16-cv-1706 (VAB),
24
2017 WL 3262157, at *18 (D. Conn. July 31, 2017) (denying a motion under Rule 11(c)(2) as
procedurally infirm).
D.
Default Judgment
Mr. Crabtree has moved for a default judgment against Hope’s Windows. Mr. Crabtree,
however, failed to move for an entry of default and his motion for default judgment thus is
procedurally improper. See New York v. Green, 420 F.3d at 104 (noting that the first step in
seeking a default judgment is to seek entry of default). Moreover, Hope’s Windows has since
filed a motion to dismiss, because it ostensibly plans to participate in the litigation of this case.
ECF No. 35. The Court therefore denies the motion.
E.
Hope’s Motion to Dismiss
Although Christopher J. Molyneaux had already appeared as counsel for Hope’s
Windows,11 Hope’s Windows only moved to dismiss Mr. Crabtree’s First Amended Complaint
on April 13, 2018, after the Court heard oral argument on the pending motion to dismiss filed by
the Bright Defendants. ECF Nos. 33, 35. Hope’s Windows’ motion is untimely. See Dec. 20,
2017, Scheduling Order, ECF No. 17 (“Amended Pleadings due by 1/19/2018”).
A scheduling order issued under Fed. R. Civ. P. 16 “may be modified only for good cause
and with the judge’s consent.” Fed. R. Civ. P. 16(b)(4). “A finding of good cause depends on the
diligence of the moving party.” Darowski v. Wojewoda, No. 3:15-cv-803 (MPS), 2018 WL
2122822, at *2 (D. Conn. May 8, 2018) (quoting Grochowski v. Phoenix Const., 318 F.3d 80, 86
(2d Cir. 2003)).
Because this case was removed from state court, Mr. Molyneaux has been on the docket and
receiving notification of filings by way of the United States Postal Service or e-mail for the
duration of the proceedings before this Court.
11
25
Here, Hope’s Windows’ motion is entirely unsupported by good cause for its late filing.
Not only has Hope’s Windows offered no explanation for its late submission, but, given that
Hope’s Windows had appeared in the case and failed to file a responsive pleading within the
time set out in the standing Scheduling Order or to appear at the hearing on April 12, 2018, ECF
No. 33, the “diligence of the moving party” is lacking. Darowski, 2018 WL 2122822, at *2. The
Court therefore denies Hope’s Windows’ motion and directs it to file an Answer in this case. Cf.
Parker v. Columbia Pictures Indus., 204 F.3d 326, 340 (2d Cir. 2000) (“[D]espite the lenient
standard of Rule 15(a), a district court does not abuse its discretion in denying leave to amend
the pleadings after the deadline set in the scheduling order where the moving party has failed to
establish good cause. . . . [A] finding of “good cause” depends on the diligence of the moving
party.” (citations omitted)).
VI.
CONCLUSION
For the foregoing reasons, the Bright Defendant’s motion to dismiss is GRANTED in
part and DENIED in part. Mr. Crabtree’s claims under Conn. Gen. Stat § 42a-2-101 et seq. and
for breach of contract, breach of implied warranty, and revocation and acceptance are all
DISMISSED. Mr. Crabtree’s remaining claims against the Bright Defendants are REMANDED
to Connecticut Superior Court.
The Bright Defendants’ motion for sanctions is DENIED. Mr. Crabtree’s motion to
amend the First Amended Complaint and for default judgment are both DENIED. And Hope’s
Windows’ motion to dismiss is DENIED.
The Clerk of the Court is instructed to remand the case against Bright Window Specialist,
Inc., and Richard Kusyk to Connecticut Superior Court, Judicial District of Stamford/Norwalk at
Stamford, and amend the caption in this case accordingly.
26
SO ORDERED at Bridgeport, Connecticut, this 30th day of May, 2018.
/s/ Victor A. Bolden
VICTOR A. BOLDEN
UNITED STATES DISTRICT JUDGE
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